Appeals court tosses out ‘right to farm’ challenge

A constitutional challlenge to Oregon's "right to farm" law, which protects farmers from lawsuits over common industry practices, has been thrown out of court. However, the legal question could still be resurrected.

The Oregon Court of Appeals has thrown out a lawsuit that challenged the constitutionality of the state’s “right to farm” law.

The law protects farmers and foresters from litigation over trespass or nuisance claims arising from common industry practices, like herbicide spraying.

However, the ruling may not be the final word on the constitutionality of the “right to farm” statute, since the lawsuit was dismissed based on the court’s lack of jurisdiction — not the merits of the case.

“They didn’t address the underlying theory the plaintiffs brought forward. They didn’t touch that issue at all,” said Tim Bernasek, attorney for the Oregon Farm Bureau. “That is an open question still.”

The seven plaintiffs in the case are Lane County residents who objected to their neighbor’s use of pesticides and chemicals, claiming the substances drifted onto their properties.

The neighbor raised the “right to farm” defense and the plaintiffs voluntarily dropped the case, but they were ordered to pay for the opposing party’s attorney fees.

The award was upheld on appeal in 2008.

The plaintiffs then filed another lawsuit against the State of Oregon, seeking a declaratory judgment that the “right to farm” law violates the state constitution.

They claimed that the statute prevents them from seeking a legal recourse for an injury, which conflicts with the constitution’s “remedy clause.”

The Oregon Court of Appeals has rejected their lawsuit without reaching a decision on that argument.

The court held that the conflict in this case is too speculative, since the plaintiffs haven’t made allegations of actual trespass or nuisance.

David Force, attorney for the plaintiffs, said the ultimate question of whether the “right to farm” law is constitutional could be resurrected in court if his clients file another lawsuit over pesticide spraying.

“This doesn’t really end anything,” he said. “Whether that is desirable or not is something my clients will have to decide.”

Force said he disagreed with the ruling’s conclusion, since the plaintiffs have repeatedly been subject to the intrusion of herbicides onto their property and water.

“The idea that (the harm) is speculative is simply wrong,” he said.

Gary Hale, the lead plaintiff in the lawsuit, said he would not comment on possible future litigation against his neighbor.

He also hasn’t decided whether to challenge the recent ruling before the Oregon Supreme Court.

“We don’t know what we’re going to do next,” Hale said.

If the “right to farm” law’s constitutionality is challenged again in a different case, Bernasek said there are valid legal arguments that can be made in its defense.